Opinion
C.A. No. 00M-10-007 JTV
March 19, 2002
COMMISSIONER'S REPORT AND RECOMMENDATION
This 19th day of March, 2002 it appearing that:
1. Petitioner Michael J. Richardson ("Richardson") has filed a petition for a Writ of Mandamus, seeking this court to compel the Department of Correction to return to him $200 U.S. Currency allegedly received by Richardson in a letter from his sister.
2. In the petition, Richardson asserts that he received a letter from his sister which contained several photographs and a $200 money order. Richardson claims the money order mistakenly went directly to him instead of to his prison bank account. Richardson further claims he immediately took the money order to Sergeant May of V Building and signed the money order. Richardson claims the money was never placed in his account and he is seeking a writ of mandamus to compel the Department of Correction to credit him with the two hundred dollars.
3. Richardson's petition must fail for several reasons. Under Delaware law the basis for issuance and the scope of relief available through a Writ of Mandamus are limited. Mandamus is issuable not as a matter of right, but only in the exercise of sound judicial discretion. Moreover when directed to an administrative agency or public official, mandamus will only issue to require performance of a clear legal or ministerial duty. For a duty to be ministerial and thus enforceable by mandamus, the duty must be prescribed with such precision and certainty that nothing is left to discretion or judgment. Additionally, it has long been held that one who seeks to compel the performance of some duty by mandamus proceeding must not only show a clear right to have such duty performed, but also that he has no other adequate remedy. If the right be doubtful, mandamus will not lie. It would appear that Richardson's relief should proceed in an action for replevin if he has any rights at all.
Guy v. Greenhouse, Del. Supr. No. 285, 1993, Walsh, J. (Dec. 30, 1993) citing Ingersoll v. Rollins Broadcasting, Del. Supr., 272 A.2d 336, 338 (1970).
Guy v. Greenhouse, Supra, (citing Capital Education Assoc. v. Camper, Del. Ch., 320 A.2d 782, 786 (1974).
Darby v. New Castle Gunning Bedford Ed. Assoc., Del. Supr. 336 A.2d 209, 211 (1975).
State ex rel. Lyons v. McDowell, Del. Super., 57 A.2d 94, 97 (1947).
Replevin is a form of action for the recovery of the possession of personal property which has been taken or withheld from the owner unlawfully. In order to obtain relief, Richardson must establish that he has a right to the immediate and exclusive possession of the item in controversy. If Richardson does not have the right to the immediate possession of the item, he cannot maintain replevin.
Harlan v. Hollingsworth Corporation v. McBride, et al., Del. Supr., 69 A.2d 9 (1949); Bennett v. Brittingham, 3 W.W. Harr. 519, 33 Del. 519; McClemy v. Brown, 6 Boyce 253, 99 A. 48; 2 Woolley's Delaware Practice, §§ 1526, 1528, 1541, 1555.
2 Woolley, § 1541.
Id. § 1524.
Richardson's right to the possession of personal items is not absolute, but is subordinate to the security requirements of the prison and the safety of the staff, administrative personnel, visitors and inmates themselves.
Hudson v. Palmer, 468 U.S. 517, 527, O'Connor, J., concurring, 1994.
Possession of currency is an infraction of the rules of Delaware Correctional Center and the Inmate Housing Rules specify those items which are authorized and not authorized; currency is listed as contraband. Before an inmate can be said to have a protected property interest in possessing tangible personal property, that possession must not be prohibited by a regulation. Clearly, if in fact Richardson ever had the money order in his cell as he claims, the money would have been contraband and thus Richardson had no right to possess it.
Woodlin v. Radcliff, Justice of Peace Ct., C.A. No. JP9 P DCC 97C0020, Maybee, J. (Dec. 29, 1997) (Order).
Id., citing Bryant v. Barbara, "Kan. App. 2d 167, 717 P.2d 522 (1986).
THEREFORE, I recommend the Court dismiss Richardson's petition as meritless.